Decision to prosecute child abuse cases falls on long-established, little-known process

Monday, November 12, 2012 at 12:17am
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A mural on the wall of the Nashville Children's Alliance marks the spot where an interagency group meets to discuss suspected child abuse cases. (Michael W. Bunch)

 

Sometimes, the effects of abuse can be seen in a child’s eyes or heard in their voice. For experienced case managers and child protective workers, it’s not tough to spot the telltale symptoms: a quavering voice, a drastic change in expression or even antisocial behavior.

And while those signs may indicate abuse, they don’t always lead to justice.

According to data from the Nashville Children’s Alliance, a multidisciplinary team charged with investigating cases of suspected child abuse in Davidson County reviewed more than 1,200 cases in 2011. Of those, the team classified 371 reports as indicative of abuse. Roughly 45 percent, or 167, of those cases weren’t taken up for prosecution by the Davidson County District’s Attorney’s Office.

Many factors play a role in deciding to prosecute child abuse cases, including evidentiary standards, the nature of the disclosures (including the age and testimony of the child) and the level of corroboration for the allegations.

Under Tennessee law, the process in each county is overseen by a Child Protective Investigative Team, which includes officials from law enforcement, the state Department of Children’s Services, the district attorney’s office and local child advocate groups.

The long-established, yet little-known, process of reviewing child abuse cases sheds light on how and why sensitive child abuse cases are — and aren’t — prosecuted.

 

 

The idea for a multidisciplinary approach to child protection services was conceived in Huntsville, Ala., in the early 1980s. At the time, Assistant District Attorney Bud Cramer was attempting to find more ways to prosecute child sex abuse cases — which were mostly kept under wraps.

“There weren’t that many prosecutions [back then]; people didn’t talk about child sex abuse that much,” Nashville Children’s Alliance Executive Director June Turner said. “Most of the time, the alleged abuser is someone the child knows. So therefore, it used to be handled pretty [much] within the family.”

Also, in the days before Child Protective Investigative Teams, a child was subject to separate interviews with law enforcement, child protective services, the DA’s office and medical examiners.

“It all came to a head when a little boy was sitting in his office and Mr. Cramer was questioning him about the abuse, and the little boy said, ‘Don’t you people talk to each other?’ ” Turner said. “So he thought, wouldn’t it be a great idea if there was a neutral location where these professionals could come together ... and families and children could receive services.”

And so child advocacy centers, along with the CPIT approach, were born.

Professionals in Davidson County took note of what was going on in Huntsville and quickly adopted the process. In 1985, the Tennessee General Assembly passed a law mandating a multidisciplinary team to handle child abuse cases in each county.

In the late 1980s, CPIT team members even put on a mock meeting for the state legislature to show lawmakers how the process works.

“Our team has not missed a monthly meeting since October 1985, and I’m very proud of that,” Turner said of Davidson County’s CPIT.

And while Tennessee was considered to be ahead of its time due to its early adoption of the CPIT approach, the process didn’t come without challenges. Some have described CPIT as an “uneasy alliance.”

“We bring to the table case managers, detectives, lawyers, child advocates, and we all come from different backgrounds. We all have our own cultures, yet we are mandated to work together,” Turner said. “But having the leadership and making sure the team meets is huge.”

The CPIT process usually starts with the Department of Children’s Services. All allegations of severe physical and sexual abuse are investigated. (Tennessee law demands that residents report any form of suspected child abuse.)

If DCS can locate the child, the staff conducts a forensic interview to try to glean more information about the alleged abuse.

Last year in Davidson County, 1,248 cases of child abuse were reviewed by CPIT. Roughly 56 percent of those cases were classified as “unfounded” by DCS.

Unfounded cases typically are when a child denies any abuse has taken place. The CPIT team can still recommend therapy or other family services in those cases.

“A lot of those result in being unfounded, because you don’t have the preponderance of evidence to indicate that something has occurred,” DCS Director of Child Safety Carla Aaron said. “We’re often dealing with very young children who either can’t really give a good disclosure or that’s all we may have: some information from that child and no other evidence.”

But even when cases are classified as unfounded, that doesn’t necessarily mean abuse didn’t occur.

“A lot of folks think that if you ask a child ‘Have you been abused?’ and they have, they are just supposed to look at you and say, ’Yes,’ ” Davidson County CPIT coordinator Dawn Harper said. “But there are so many reasons that they don’t. Disclosure is a process.”

The other main classification of child abuse cases is an “indication” of abuse. Indications can include a compelling disclosure of abuse or a preponderance of physical evidence.

“It’s something to tell those families, ‘This is serious,’ and we’ve got to get some professionals involved in that family situation,” Turner said.

Davidson County Assistant District Attorney Sharon Reddick said there are several main factors to consider in an indication.

“It’s basically, did the child make a disclosure? Very rarely, the other evidence is such that it’s one we’re going to indicate or prosecute. … Maybe a child is really too little to articulate what will happen. That’s fairly rare,” Reddick said. “The vast majority of indications are: Did the child disclose sexual abuse? Can the child identify the perpetrator?”

But all cases of indication don’t rise to the level of prosecution. As mentioned, 167 cases where abuse was indicated were not prosecuted in Davidson County in 2011 — while 204 cases were taken to court. Of the 167 non-prosecuted cases, 27 of those involved a juvenile suspect, while 140 were alleged adult-on-child abuse.

The reason many of those cases don’t progress to criminal prosecution lies in the U.S. Constitution, specifically the right to face one’s accuser. In almost all circumstances, children have to take the stand to confront their alleged abuser.

“It’s a big hurdle … but it’s not as big a hurdle as people make it out to be. Kids can do it,” Reddick said. “It can be done. It’s not an exercise in re-victimization. This is their opportunity to regain their power.”

But in some cases, it’s not realistic. For instance, if a child was 3 or 4 at the time of the abuse, they may have forgotten — or emotionally moved on from — the abuse. Other times, a non-offending parent may not consent to going forward with prosecution.

“We really have to look at the victim and … weigh in to the prosecution [decision] how the victim feels about it and what the benefit would be to that victim,” Aaron said. “Hopefully, there’s a confession or enough evidence that there’s a plea bargain. That’s the optimum for me.”

One large piece of the prosecution puzzle lies in the admission, or lack thereof, of the child’s original videotaped forensic interview with DCS case managers and child advocates. Generally, those videos — which can often be wrenching and emotional — are not admissible as evidence in criminal court.

A state law passed in 2009 allowed videos of forensic interviews to be admitted in pretrial hearings, as long as a list of conditions are met. The law pertains only to an interview of a child under the age of 13 who is describing sexual conduct.

But Reddick said the DA’s office is hesitant to use the law — which hasn’t been tested for constitutionality.

In fact, a Davidson County case was recently remanded for a new trial by the Tennessee Court of Appeals after the state admitted a child’s forensic interview video as evidence. The prosecution argued that the video was admissible because the child could no longer remember details of the abuse.

But the Court of Appeals issued a 35-page opinion in July 2012, explaining there was a difference between using the video to make up for a lack of memory, which is not allowed, and using it as evidence to make up for inconsistent statements.

Because of those detailed interpretations of the law, it’s difficult — and risky — to attempt to bring in the video evidence, Reddick said.

Instead, to build a strong case, the DA’s office looks for four major pieces of corroboration when it comes to testing the criminal court system:

- Is there corroboration to the child’s disclosure?

- Is there forensic evidence?

- Is there medical evidence?

- Is there an eyewitness?

“The reality is that if I don’t have any of those things to put before a jury, that’s going to pretty significantly affect whether or not I can prosecute,” Reddick said.

“There’s no slam dunk in these cases, at all. … It’s very rare to have a case that I’m 100 percent convinced that I’m going to get a conviction … there’s too many variables.”

Reddick added: “I’m not ever going to take a case for prosecution if I don’t personally believe the [suspect] did it.”

She acknowledged the harsh reality that the law makes it tough to proceed with borderline cases.

“There are plenty of times where I do personally believe they did it, but I just don’t feel like I can take it [to court] because I don’t think I can prove it,” Reddick said. “There are lots of times when I decide not to take something for prosecution, and I don’t feel good about it because I really want to get them and I really think they’re guilty.”

There can be remedy for unprosecuted cases in Juvenile Court, which is a civil proceeding. In those cases, forensic interview videos are admissible, and a judge can issue orders of protection for children.

DCS also keeps a close eye on so-called indicative cases that weren’t prosecuted.

“We are able to track prior investigation. It’s not uncommon for a case that might not have prosecution, that we go and put in counseling … and keep that case open for a period of time,” Aaron said. “If someone has concerns later, we can go back into our system and track that to see what happened on that prior investigation.”

Turner still has specific memories of cases that, at first glance, couldn’t be prosecuted but later ended in justice.

“I remember one particular child that I knew, I knew in my heart [she was being abused], but she was not ready. I was doing the best I could as a case manager,” Turner said. “We managed to get the mom to sign a release to do the therapy. A year later, the child disclosed. So we’ve got children in all stages.”

In those cases, the new allegations are brought before CPIT, and the team revisits the details of the case.

The number of cases that do slip through the cracks only drive Turner and her team to work harder.

“I do think that it is a daily reminder to all of us to do our very best work because the DA’s office can’t take cases for prosecution if the work that’s done on that case has not been good,” Turner said.

“It takes a lot in this country to prosecute a case, and it really should. The last thing we want is an innocent person being locked up.”

But at the same time, legalities can delay justice.

“Hopefully, that perpetrator has some accountability for their actions,” Aaron said. “[Davidson County Attorney General Torry Johnson] has a whole team of prosecutors … but we all know the limitations of our court system and what the DAs can do.”

1 Comment on this post:

By: Mark Mayhew on 11/13/12 at 9:33

What goes largely unsaid in this article focused on criminal prosecution is that much of the activity in cases where child sex abuse is alleged happens, not in criminal court, but in the juvenile courts, in dependency and neglect proceedings.

In juvenile court, the burden of proof is of a lower standard, the rules of evidence are often interpreted differently, and videotaped forensic interviews with children are (in my experience) almost always admitted. This puts the parent in a position where he or she is normally unable to confront or cross-examine the most damning witness. Indeed, in many cases, the parent has either been ordered by the court to have no contact with the child, or has been ordered not to discuss the case with the child.

The outcome of these proceedings, if a finding of dependency and neglect is reached, is that the parent almost always loses custody of the child, sometimes permanently. This is true even if the parent is not the abuser, if the court concludes that the parent "should have known" about the abuse.

In these cases, the deck is stacked heavily against the parents. They are often represented by court-appointed counsel who are restricted as to the number of hours for which they can be paid to represent their client.

Child sex abuse allegations are the most serious non-capital offenses of which a person can be accused. They do more damage to the reputation and psyche of the defendant (respondent) than murder charges. People accused of child sex abuse lose their kids, their jobs, and sometimes, their homes.

That's the other side of this story.